By Attorney Peter Graham Cohn
Published in the Sun Reporter Newspaper of the San Francisco Bay Area
Date: November 14, 2016
Sometimes we forget the all important fact of our own American history that all power rests with “We the People.” Our Constitution of September 17, 1787 begins with the specific acknowledgement of that reality. It states: “We the People of the United States, in order to form a More Perfect Union, establish Justice, insure Domestic Tranquility, provide for the Common Defense, promote the General Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.”
Additionally, our Declaration of Independence of July 4, 1776 unequivocally stated: “We hold these truths to be self-evident, that all men [people] are created equal; that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty and the pursuit of happiness. That, to secure these rights, governments are instituted among men [people], deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it….”
The implication of these founding documents and principles underscores that we should never forget that it is ultimately with the people wherein all power rests. This is a basic civics lesson that Mr. Trump will have to understand either the hard way or the easy way.
Recent events suggest that it may be the hard way. This election did not overturn the Constitution nor our constitutional principles. We, as a people, do not elect a dictator or a monarch with absolute power over the people. Therefore, Mr. Trump cannot check the people’s right to free speech and association as he attempted to do with his twitter challenging the demonstrators’ First Amendment right to free speech and protest as well as to a free press. It is the people and, yes, school children in their civics lessons, who clearly know that the following tweet is completely inappropriate for anyone who is to hold the office of President or anyone who is sworn to uphold the Constitution. Mr. Trump wrote: “Just had a very open and successful presidential election. Now professional protesters, incited by the media, are protesting. Very unfair!” As late as yesterday, Mr. Trump was still attacking the media and not telling the truth when he tweeted: “Wow, the @nytimes is losing thousands of subscribers because of their very poor and highly inaccurate coverage of the ‘Trump phenomena’.” To the extent Mr. Trump continues to speak and act consistent with these false anti-media statements and inconsistent with the Presidential oath of office, the people will be heard and the First Amendment will prevail.
We should also take heart that the overwhelming majority of the American people voted against many of the hateful, racist, anti-immigrant and sexist themes with which Mr. Trump and his campaign promoted. When one adds together the popular vote victory of Ms. Clinton along with the Liberatian and Green Party votes, you have a substantial majority of the people not supporting many of the outrageous positions of Mr. Trump. Even within the Republican Party, there remained voices who rejected a number of Mr. Trump’s positions. In short, there is a bulwark of people who will not be silent in the face of any injustice or unconstitutional assertions by Mr. Trump. In this regard, Mr. Trump has a duty to the people to not staff the White House – the People’s House – with all those individuals who have promoted the views that make the majority of Americans legitimately fearful and uncomfortable. To the extent Mr. Trump goes forward with appointing Stephen Bannon of Breitbart or anyone else who promotes Alt-right and white supremacist views, it will place a cloud over all of his appointments and will tell America that this is the misguided direction of his administration.
In addition to the power of the people, there are other matters that should offer guidance and pause to Mr. Trump. This is the first Presidential election in many of our lifetimes where there has been a serious question raised as to whether the Federal Bureau of Investigation (FBI) twice intervened to interfere with the outcome of an election in favor of the Republican Party. It happened once in July of 2016 and again in October within 11 days of the November 8 election. Similarly, the allegation that Mr. Trump’s campaign consorted in any manner with a foreign power – Russia – for the purpose of interfering with the 2016 American election should be fully sorted out. While there was unprecedented vitriolic name calling and outright lying about opposing candidates, private citizens and the media that may have worked in Mr. Trump’s campaign, these unseemly strategies will certainly not work for governance. While these additional allegations, facts and circumstances at the present do not change the election results, they do place further questions and responsibilities over the office that Mr. Trump will assume next year.
With these thoughts in mind, it is important to remember that whoever enters the office of President is responsible for heading the Executive Branch of government for all the people and not a single political party. Mr. Trump’s initial challenge will be to determine whether he will govern all the people in a fair and equitable manner consistent with the Constitution – the easy way, or whether he will choose to attempt to govern over only the minority of the minority Republican party – the hard way. If he chooses the latter, the people and the laws of our nation will not permit it.
We must all remember that the result of the 2016 election did not suspend the American Constitution and laws. Moreover, it certainly did not give the Office of President the ability to suspend our core legal principles and values, and to run rough shod over the rights of people within and without our borders. All those who have or will take the Presidential oath of office must affirm or swear: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability preserve, protect and defend the Constitution of the United States.”
Once having taken that oath, Mr. Trump must act within the Constitutional boundaries of the Office of President. Mr. Trump would be well advised to lead on the things that he did advance and for which the clear overwhelming majority of the American people agree.
With respect to the issues of war and peace, he should follow through on his representation that he is a non-interventionist; and, he should continue a policy of relative peaceful stability of where we are, as a nation, in winding down wars rather than expanding them and pursue peace. He should not appoint the neocons and war advocates to his administration. He should make clear that he will protect the lives and wellbeing of our young men and women in the military – the majority of whom are people of color and the poor.
With respect to our domestic agenda, there is broad based consensus across the country that major criminal justice reform is necessary both to make our communities safer with smart on crime policies and to save the financial stability of the various states. A critical part of this reform is how people are caught up in our justice system in the first place through bias and unfair policing. Mr. Trump will have to make very clear that he is fully committed to the rule of law. Contrary to his false assertions during the debates, “stop and frisk” and “racial profiling” have been held to be unconstitutional in violation of the Fourth Amendment.
The Fourth Amendment protects: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” A president does not have the authority to overturn either this vital liberty portion of the Constitution or the judicial rulings interpreting those rights simply because he does not understand or agree with them. To do otherwise would be a profound breach of one’s oath of office. To the extent this pathway would be chosen, the people and the judiciary will be heard.
In regards to the economy, Mr. Trump has represented that, as a businessman, he has the ability to immediately work to further invigorate the economy by major investment in jobs and rebuilding our infrastructure. While there was clear Republican resistance in 2009 and thereafter in the Congress to give the American people a more substantial stimulus bill, such legislation would have permitted our economy even further record growth. A broad range of independent and responsible economists had indicated that a larger stimulus would have actually and earlier accelerated the economic recovery. This was not to be, then, because of the stated Republican commitment to undermine the success of President Obama. Now, because President Obama will no longer be the issue, there should be nothing to prevent his successor from embarking on a massive jobs and job training program – effectively a new major stimulus – that will benefit not only people of color and the poor but also those graduating from college and training programs with tremendous debt and without jobs.
With respect to education and its relationship to jobs and the economy, Mr. Trump can also find consensus in pursuing policies of equal educational opportunity for all. As we see families vigorously compete to have their children have access to the best early childhood education programs, our nation should make sure that these opportunities are available to all on an equal basis irrespective of color or social/economic status. There is a consensus in our country that education is the key for successful participation not only in jobs and growing the economy but also in life. During his campaign, Mr. Trump has asked for the opportunity to change the life course of people of color and those in our depressed urban centers; and, now he will have the opportunity to show that he can carry through on those stated desires beginning in 2017.
Along with education, the many facets of health care are critical for successful education, work and a thriving economy and a peaceful and successful society. When surveyed, the majority of the American people always indicated that they agreed with the “Patient Protection and Affordable Care Act” (ACA). Here again, the challenge for Mr. Trump will be to build on that consensus. There was always a consensus view across political parties that there were ways to strengthen the ACA. For example, a majority of the people and economists supported a public option to more fully control the rising costs of health care even though the final bill then – because of major Republican political opposition – did not include one. Moreover, the Republican goal in the Congress was to not strengthen the law in order to make it fail. Mr. Trump’s challenge now will be to determine how to faithfully enforce existing health care laws and to protect all those Americans who are currently benefitting from the ACA including those 20 million people who were most recently enrolled. The public option remains a viable alternative to include even more people. To the extent citizens’ current right to health care and the goal of health care for all are compromised by the Executive or Legislative Branches, the people will be heard.
With respect to the suggestion that there would be “mass deportations” of undocumented persons, we should all be reminded that the Fifth and Fourteenth Amendments apply to the federal and state governments respectively and cannot be changed by mere Presidential fiat, they hold that: “No person shall be …deprived of life, liberty, or property without due process of law.” Similarly, birth right citizenship is fully protected under the Fourteenth Amendment. Here again, neither a president nor any other official has the ability to singularly change the Constitution. The majority of our country rejected those backward thinking ideas and will not amend our constitution to achieve such unjust goals. To the extent these un-American paths are attempted to be chosen for people who are currently and greatly contributing to the economic vitality of our country, the people and the judiciary will be heard. We the people say: you are not alone and we will stand up for you.
With respect to the rights of women to control their bodies, Mr. Trump does not have authority to change the Constitution. If Mr. Trump was telling the truth when he said that nobody respects women more than he, he should be held to this statement and use his appointive power in government to choose people who actually respect women and the sanctity of their persons. He should reflect on the 1965 Supreme Court decision in Griswold v. Connecticut and its progeny upholding the right of the people to have access to birth control. Moreover, it established the precedent that there is a right of privacy within the Constitution and that it would be repulsive to the notions of privacy surrounding the marriage relationship to “allow police to search the sacred precincts of marital bedrooms for the telltale signs of the use of contraceptives.” Similarly, in the 1973 Roe v Wade decision, the Court respected a woman’s right to choose and overturned Texas’ Penal Code Statute that restricted legal abortion only for the purpose of saving the life of the mother. Mr. Trump should respect the consistent Supreme Court precedents right through 2016 with its most recent decision in Women’s Health v Cole which overturned another Texas law restricting women’s access to an abortion by requiring doctors to have admitting privileges at a surgical hospital within 30 miles of where the procedure is to be performed. The Court appropriately concluded that Texas was placing an impermissible undue burden on a woman’s right to an abortion.
With respect to Marriage Equality, the Supreme Court has settled these issues in 2015 in Obergefell v. Hodges and held that that the Equal Protection clause of the 14th Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. According to Gallup in 2016, more than 60% of the American people support the legality and morality of marriage equality. Therefore, the American people’s relatives, friends and fellow citizens should not live in fear because they have the Constitution and “we the people” on their side. This as well as all the above legal precedents must be accepted by Mr. Trump if he wishes to be President for all the people.
In sum, it should be our American resolve that no person living in the United States should live in fear that their fundamental rights as human beings will disappear as a result of the recent federal election. No one person, including the President, has the capacity to overturn our Constitution and laws. Most importantly, there is a reason that we have a federal election every two years. The major reason is so that the people’s voices can be integrated into our governmental system. We should honor this system by always voting in EVERY election so we can shape the government that we desire. We have a short 24 month period in which we can formally be heard and elect a government that more fully reflects our views. This requires a full court press now by all who care about America’s course and future. In the meantime, we should be prepared to always stand up and speak out for “we the people”. By doing this, we can give comfort and active support to anyone experiencing fear of a new administration because they will clearly know that the people are on their side. Because we are the popular majority, we cannot be stopped and will be heard every day on each and every issue that affects the type and quality of America in which we desire to live.
Attorney Peter Graham Cohn is a civil rights attorney in the San Francisco Bay Area and is the Acting President of the NAACP National Voter Fund. Attorney Cohn’s Office is located at 315 Keokuk Street, Petaluma, CA 94952; Telephone: 707-778-6945; Fax: 707-778-6945; and Email: email@example.com.